Military justice system a self-inflicted casualty in terror war

ByJuliette KayyemFebruary 23, 2004

CAMBRIDGE, MASS.
— Has our traditional system of military justice become the latest casualty in the war on terror? One gauge of that question is the handling of the case against a former Muslim chaplain at Guantanamo Bay, US Army Capt. James Yee.

Last week, for the fifth time in three months, Captain Yee's military court preliminary hearing was postponed to give the Army more time to review classified documents it alleges Yee took from Guantanamo Bay. Last year, Yee spent 76 days in prison while military prosecutors tried to build a much-publicized espionage charge against him. Failing that, the government charged the West Point graduate with mishandling classified material (material apparently still being assessed by the government). And just in case those charges don't stick, Yee was also accused of adultery and downloading pornography on his government laptop computer, both punishable in a military court. Somehow, he's got to be guilty of something.

The delay is unfortunate, and suggests the government's case is weak. To date, despite a cadre of military prosecutors involved in months of investigation, the government has failed so far to disclose to the court, or evidently to the defendant, the basis for its allegations that Yee posed a harm to the nation.

If Yee was in fact in physical possession of classified materials when he was originally detained, it should not take prosecutors months to cull through the material. Yet in previous public testimony, the sole evidence against Yee was made by his former mistress, who admitted to an affair in violation of military rules. This may be of significant interest to Yee's wife, but hardly a US security breech.

The government has now stated that even if its national security charges come to naught, it will still pursue Yee for his affair and pornography.

What is at stake now is the independence of military justice from such command and political influence. Nothing less than a dismissal of Yee's charges will redeem military justice in the eyes of those who are subject to its jurisdiction.

It is often said that military justice is to justice as military music is to music. In other words, they don't have much in common. That's only partially true. As the military expanded under World War II conscription, a parallel military justice system arose - one that has tried to replicate the traditional criminal system with variances to take into account particular needs of the armed forces.

It's not a perfect system, but the Uniform Code of Military Justice, which governs courts martial and is one of the largest criminal justice systems in the nation, is worthy of respect. It has an aggressive defense bar that wouldn't tolerate many of the often-reported deficiencies of the public defender system. It allows for civilian review - before the US Supreme Court - and ensures that those who sit in judgment aren't subject to command influence by prosecutors.

This is why the Bush administration's proposal to utilize a new type of military commission against suspected terrorists - in secret proceedings heavily weighted in favor of the prosecution - found some of its greatest foes within the military.

Today, the Yee case poses another challenge for military justice that is only hinted at in the formal complaint against him. It has been suspected that Yee was targeted for interrogation because of growing concern at Guantanamo Bay about Arab and Muslim translators working closely with alleged terrorists. Yee's suspected sympathy with some of the captives likely stirred antagonism on the base.

It would be difficult to quantify to what extent the government used profiling to target Yee, and then, out of desperation and lack of evidence, targeted him on punishable adultery charges.

What is clear is that the impact of the treatment of Yee on potential Arab and Muslim translators in the military is likely to be devastating. It is a result the US can ill afford. It is also not new. It has been reported that the aggressive, and ultimately minimal, espionage prosecution of scientist Wen Ho Lee in 1996 caused a dramatic decline in Asian-American scientists willing to serve the US.

In addition, the Yee case is a glimpse into the government's heavy handed detentions at Guantanamo Bay. The Supreme Court will decide this year whether the administration's indefinite detention of hundreds of men there, only alleged to be terrorists or combatants, is a legitimate use of power. Until then, Guantanamo Bay exists in a legal never-neverland. Charges against Yee, and other Muslims at Guantanamo, have all fallen short. The problem with Guantanamo is not espionage or infiltration; it's Guantanamo.

Whatever Yee may have done wrong in the military's eyes pales in comparison with what the case has done to denigrate the military court system.

The military court should take its next opportunity not only to salvage Yee's shattered reputation, but to salvage the reputation of military justice itself.

• Juliette Kayyem, a former adviser to US Attorney General Janet Reno, served on the National Commission on Terrorism from 1999 to 2001 and teaches national security and law at Harvard's Kennedy School of Government.